RECENT DEVELOPMENTS IN . . . APPELLATE LAW
Both State and Federal Appellate Courts Tighten Their Jurisdictional Requirements
by John T. Schreiber
Reprinted from September 1993 Contra Costa Lawyer with permission of the Contra Costa Bar Association.
Courts of Appeal have frequently overlooked the absence of appealable orders or judgments (generally after summary judgment, judgment on the pleadings or demurrers sustained without leave to amend) and assumed jurisdiction to reach the merits of the case. Now two recent decisions, one in the Fourth District Court of Appeal and one in the Ninth Circuit, may indicate that the courts are applying the jurisdictional requirement of a final judgment or appealable order more strictly. As a consequence, counsel seeking appellate review must ensure that they are appealing from an appealable order or judgment.
In Shpiller v. Harry C=s Redlands, 13 Cal.App.4th 1177 (March 2, 1993), the Fourth Appellate District dismissed an appeal and awarded costs to respondent because the appeal was not from an existing appealable order. Cross-complainant had Aappealed@ from an order and notice of ruling announcing dismissal pursuant to California Code of Civil Procedure sections 583.410 and 583.420. The Court held that a notice of ruling is not an appealable order or judgment and that the record on appeal contained no order of dismissal. Code Civ. Proc. section 904.1.
The court in so ruling pointed out:
(1) the court=s repeated admonitions to parties about making sure that they are appealing from an appealable order or judgment;
(2) the amendment of California Rule of Court 13, requiring opening briefs to state that the appeal is from a judgment or why the order or non-final judgment is appealable;
(3) the Fourth Appellate District=s new Local Rule 9, enacted in part because of the persistence of Aappeals@ where no order existed. That rule requires all appellants to file a docketing statement within 10 days of the notice of appeal, along with a file-stamped copy of the order or judgment or clerk=s minutes (the First District also requires a docketing statement; Local Rule 2). The procedure allows the court at the earliest possible stages to determine if there is an order and if it is appealable; and
(4) the Fourth District=s newly established policy, whereby the court will no longer give appellants an opportunity to Asave@ their appeals by allowing them to obtain a final judgment or appealable order while the appeal is pending. Shpiller, supra. But see Yancey v. Fink (1991) 226 Cal.App.3d at 1342 (allowing appellant to save appeal by obtaining a subsequently filed judgment).
Perhaps to underscore its seriousness about this issue, the court in Shpiller pointed to Local Rule 9 and its new policy even though the Notice of Appeal had been filed and the case briefed before Local Rule 9 and the new policy took effect. The court cited a Ageneral trend among intermediate appellate courts of this state to reaffirm that the responsibility to perfect appeals is firmly on the shoulders of appellants@ and that Ait is no longer this court=s policy to >save= erroneous appeals.@ Id.
In a similar vein, the Ninth Circuit in Reilly v. Hussey, et al. 93 C.D.O.S. 2054 (March 24, 1993) dismissed an appeal for lack of jurisdiction. The notice of appeal was filed pending appellant=s motion for rehearing in district court, which was sitting in an appellate capacity in a bankruptcy matter.
The Court held that the notice of appeal Awas a nullity: >[I]t is as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act.= Griggs. V. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam).@ Reilly, supra, at 2054.
The Court found that Bankruptcy Rule 8015 was silent on the effect of an appeal filed before a motion for rehearing was decided and pointed out that Federal Rule of Appellate Procedure 6(b)(2)(i) provides that the time for appeal to the Court of Appeals runs from the entry of an order denying rehearing. Finally, the three-judge panel also found that the Advisory Committee on Appellate Rules deliberately omitted any such reference regarding the effect of an appeal filed before the entry of an order denying rehearing because it wished to Aleave undisturbed the current state of law in that area.@ Id., citing Fed. R. Appl. P. 6, Advisory Committee Notes, 1989 Amendment, subd. (b)(2). The law of the circuit at the time of the amendment held that a notice of appeal in a bankruptcy case is null if filed while a motion for rehearing is pending in district court. In re Stringer, 847 F.2d 549, 550 (9th Cir. 1988). The Court in Reilly reaffirmed Stringer. Reilly, supra, 93 C.D.O.S. at 2054.
The result in Reilly seems logical, considering the law of the circuit and considering the fact that the appellants in the case had sought numerous reviews of adverse decisions in bankruptcy court, district court, and the Bankruptcy Appellate Panel.
However, one aspect of the decision could have harsh consequences for the unwary appellant: the Ninth Circuit could have promptly dismissed the appeal without prejudice, allowing appellants (who were in pro per) an opportunity to appeal following the district court=s denial of the rehearing motion. Instead, the court left appellants without further opportunity for review by waiting almost two years and then publishing its dismissal, well after the time had run for appeal from denial of the motion. Although that may not have been such a terrible result in this case, the consequences in other contexts in which the notice of appeal was a nullity are ominous: dismissal with no further opportunity to appeal because time to do so has long since run.
The court=s holdings in Shpiller and Reilly provide ample notice for counsel to ensure that he or she is appealing from a final judgment or appealable order. If not, and this trend continues, the unwary practitioner at best will waste a considerable amount of time and money (his or her own and the client=s). The court in Shpiller dismissed the appeal after briefing and presumably, after the expenditure of much time and money. Even if the dismissal is without prejudice, the attorney will likely be unable to charge the client much, if anything, the second time around. At worst, in a Reilly scenario, the requisite judgment or appealable order exists, but the notice is not timely filed, leading presumably to a possible malpractice claim. Either way, the appellate courts= increased focus on their jurisdiction makes appealability more important than ever.
John T. Schreiber practices in Walnut Creek and specializes in civil appeals. He is a director of the CCCBA Appellate Section.